By Ed White
Associated Press
DETROIT (AP) -- In their final hours in the majority, liberals on the Michigan Supreme Court threw out a landmark decision that has greatly restricted lawsuits against environmental regulators since 2004.
The 4-3 decision allows people to sue the state if they fear that a permit for certain projects would harm the environment. The ruling, which conservative justices called an abuse of power, came in a case that challenged the discharge of partially contaminated water to a popular trout stream.
Justice Alton Davis, in one of his last actions, said the right to sue was wrongly restricted by conservatives who controlled the court nearly seven years ago and violated the intent of the Legislature.
"This court can restore the accountability that was intended" under Michigan's Environmental Protection Act, he wrote in a Dec. 29 opinion.
The ruling "holds the state accountable for issuing permits," Noah Hall, an environmental law expert at Wayne State University law school in Detroit, said Monday. "You don't have to wait for pollution to literally hit the water to sue."
Davis, who had served on the state's highest court only since August, was defeated in the November election, which put conservatives back in the court's majority. Justice Robert Young Jr. and Republican newcomer Mary Beth Kelly won seats in a GOP sweep of statewide offices.
It's possible that the ruling could be overturned by the new court. A request for reconsideration by one of the parties is a common step and could easily be granted, Hall said.
Young, likely the next chief justice, called the decision a "naked exercise of power" by liberal justices who had their eye on the calendar.
In a dissent joined by Justice Maura Corrigan and Justice Stephen Markman, Young wrote that people "should fear a judiciary that is willing to bend the law to accomplish its will. Those who support it may live to see this decision further undermine the state's fragile economy."
The court's 2004 ruling in a case known as Preserve the Dunes mostly limited watchdog groups to challenging permits on procedural grounds, not on potential environmental impacts, Hall said.
"Now, not only can you sue the state directly when the state issues a permit, but any citizen can do so," he said. "You do not have to be a citizen who lives near the project or someone with a tangible economic interest."
A message seeking comment from the pro-business Michigan Chamber of Commerce was not immediately returned. Its members often are targets in environmental lawsuits.
Hall is not predicting a flood of new lawsuits, partly because citizens who sue cannot recover legal fees from the losing side even if they win.
"It's very costly to bring a suit under" the Michigan Environmental Protection Act, he said. "We might have three or four cases a year. After this ruling, we might go to nine or 10."
Published: Wed, Jan 5, 2011
